TMI Blog2018 (10) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... or forged. Appellants through Appellant No.1 were in control of the affairs till 06.03.2012 cannot simply disown documents bearing signatures of Appellant No.1 by merely saying that they trusted Respondent No.2 and had signed blank papers and that the same have been misused. Fraud and forgery when alleged require details and circumstances to be proved to spell out possibilities and actual fraud and forgery. Calling for forensic evidence is supportive evidence in this regard and even that was not resorted to. The Appellants thus failed to prove oppression and mismanagement on the part of Respondents. - Company Appeal (AT) No.402 of 2017 - - - Dated:- 9-7-2018 - Mr A.I.S. Cheema, Member (Judicial) And Mr Balvinder Singh, Member (Technical) For The Appellants : Shri Amar Dave, Shri Anirudh Sanganeria, Ms. Shruti Agarwal, Shri Jayant Mehta and Shri Rahul Kukreja, Advocates For The Respondents : Shri Arunav Patnaik, Shri Karun Pahwa and Ms. Kanika Singh, Advocates JUDGEMENT A.I.S. Cheema, J. : 1. The Appellants were Petitioners 1, 3 to 5 before the National Company Law Tribunal, Kolkata Bench, Kolkata ( NCLT in short) in CP 181/2013. The Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o were Auditors of the Company seeking confirmation of changes in shareholding of the Company for the year ending 2012. The Appellant denied this and the Respondent No.2 assured the Appellant No.1 that the irregularities would be corrected at the earliest. Respondent No.2 intimated the Appellant No.1 that the audit of the accounts had not been completed because of such irregularities and urgent steps are being taken. However, audited Balance Sheets for the year ending 2012 had not been filed. According to the Appellants, the Appellant No.1 then started making enquiries and sometime in March, 2013 came to know that due to the faith reposed in Respondent No.2, the Respondent No.2 had diluted the shareholding of Appellant No.1 in the Company by forging signatures of the Appellant No.1 and siphoning of funds. In March, 2013, Appellants came to know that Respondent No.2 had filed Form 20B with Registrar of Companies showing massive change in shareholding. Form No.5 had been filed by Respondent No.2 as well as Form No.32 had been filed recording resignation of Appellant No.1 from the post of Managing Director and appointing Respondent No.2 in the same capacity. According to the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement for issue of additional capital. It has been argued that the Respondent No.2 got the share capital increased to allot additional shares to himself and to become majority shareholder. The argument is that the Board Resolution dated 06.03.2012 did not show that the Appellants were present. The EOGM dated 12.03.2012 was contrary to Article 36 of the Articles of Association which requires minimum 7 days of Notice to call General Meeting. There was no proof that the Notice of EOGM dated 12.03.2012 was served on the Appellants. The Appellants did not attend the EOGM. The Resolution adopted in EOGM dated 12.03.2012 was stated to have been confirmed in AGM dated 29.09.2012. However, there was no proof that Notice of that AGM dated 29.09.2012 was given to the Appellants. The Appellants claim that the resignation dated 26.10.2012 alleged to have been given by Appellant No.1 was forged and fabricated. 8. The learned counsel for the Appellant, at the time of arguments submitted that the Appellants accept that the resignation bears signature of the Appellant No.1 but the contents are denied as according to the Appellants, the Appellant No.1 had in good faith signed blank papers for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken steps to get the alleged forged signatures and fabricated documents examined by Hand Writing Expert. According to the learned counsel for Respondents 1 and 2, Rule 43(3) of the National Company Law Tribunal Rules, 2016 was available to the Appellants and the Appellants did not take the benefit and by merely saying that the documents are forged or fabricated would not help. It has been argued that the Appellants cannot back out of their own documents which are part of record to claim that the Respondents have committed oppression and mismanagement. 10. The first dispute relates to EOGM dated 12.03.2012 when it is stated that there was increase in authorized share capital from ₹ 12 lakhs to ₹ 62 lakhs. Annexure A-5 of the Appeal is Form 20B of the Company along with Annual Returns up to 30th September, 2011 (Page 157 to 171) showing the share capital and shareholding of the parties. Till this point of time, there was no dispute. The Annual Returns bear signatures of the Appellant No.1 and Respondent No.2. A sample can be seen as at Page 171. The signature of the Appellant No.1 on the resignation (Annexure A- 14 Page 227) is also available in record. The signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Looking to the admitted signatures of the Appellant No.1, when these documents pointed out by the counsel for Respondents 1 and 2 are seen, it does appear that they bear signatures of the Appellant No.1. Annexure -R1 (Diary No.2830) not only bears signature of Appellant No.1 in the Balance Sheet ending 31st March, 2012, (i.e. just after the EOGM dated 12.03.2012) but it also bears signature of the Chartered Accountant R.C. Pradeep. This is the same Chartered Accountant on whom Appellant appears to have reposed faith if the appeal is perused as the Appellants claim that this Chartered Accountant had cross checked with the Appellants regarding increase in share capital and facts came to light. (See synopsis Page 3.) Till this point of time, the Appellant No.1 was the Managing Director and Annexure R1 referred above has been signed by him in that capacity. 12. As regards the resignation letter dated 26.10.2012, there is extract of Board Meeting Resolution at Annexure - A15 (Page 228 of Appeal) accepting the resignation of the Appellant No.1. As per this document, the original Petitioner No.2 - Smt. Padmini Rath proposed the name of Respondent No.2 and resignation of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut even after lapse of one month he has failed to file his evidence as well as to file the application for sending the documents to the Central Forensic Science Laboratory. 03-03-2017 sufficient time is allowed to file evidence on affidavit. Not only this matter is pending from 2013 and no endeavour has been taken to dispose of the case. Under such situation prayer for further time cannot be allowed. In view of the above facts, the case cannot be adjourned every day as sufficient time had already been granted to petitioner despite pleadings were completed long back, however, for the end of justice as a last chance the case is adjourned with a cost of ₹ 25,000 upon the petitioner. Thus, the petitioner has failed to substantiate the allegations of oppression and mismanagement under section 397 and 398 of the Companies Act, 1956 against the Respondent No.2. With this observation the Company Petition No.181/2013 stands dismissed and interim order passed, if any, stands vacated as well as applications pending, if any, also stands dismissed without any cost. 15. It is apparent that the Appellants were given sufficient opportunities by the learned NCLT to subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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